## Facts

- In the middle of the night, Jacob McGovern drove through a residential area in the Village of Oak Lawn, Illinois.
- Officer Michael Acke ran McGovern’s license plate and learned McGovern had two outstanding warrants, a suspended driver’s license, and police information indicating he might be armed and dangerous.
- Officer Acke stopped McGovern’s vehicle and ordered him out; McGovern was barefoot.
- During the stop, McGovern attempted to flee on foot. Officer Acke alleged McGovern struck him before running; McGovern denied striking the officer.
- Officer Acke requested backup. Officer James Pacetti, a K-9 officer, arrived with a police dog named Arno.
- The foot pursuit led into a backyard, where McGovern hid under a trailer.
- Officers asked Pacetti to use Arno to locate McGovern.
- Defendants’ account was that officers gave several verbal warnings that a police dog would be released if McGovern did not come out, then released Arno to search; Arno located McGovern under the trailer.
- Defendants further asserted Arno was recalled, officers gave additional warnings for McGovern to come out, and then Arno was released again and pulled McGovern out from under the trailer, biting him multiple times.
- McGovern’s account differed: he claimed he agreed to come out but asked that the dog be called off first, the officers refused, and Arno bit him multiple times while he was trying to comply.
- McGovern was apprehended, treated at a hospital for dog-bite injuries, and later criminally prosecuted.
- After the criminal case, McGovern sued the Village and the officers, alleging excessive force under 42 U.S.C. § 1983 and Illinois claims for assault and battery.
- Defendants moved for summary judgment, arguing the force was reasonable under the circumstances and that the officers were not liable as a matter of law.

## Issues

1. Whether, viewing the record in McGovern’s favor, a reasonable jury could find that the K-9 deployment and resulting bites during the arrest were objectively unreasonable under the Fourth Amendment.
2. Whether factual disputes about warnings, the opportunity to surrender, and the duration/need for continued dog bites prevented summary judgment for the officers on the § 1983 excessive-force claim.
3. Whether the same disputes over reasonableness of force required denial of summary judgment on Illinois assault and battery claims.

## Decision

- The court denied defendants’ motion for summary judgment on McGovern’s § 1983 excessive-force claim.
- The court concluded that disputes over what warnings were given, whether McGovern was surrendering or attempting to surrender, and whether continued dog bites were necessary made the reasonableness of the force a jury question.
- The court denied summary judgment on the Illinois assault and battery claims because those claims also turned on whether the officers used reasonable force during the arrest.
- The case proceeded because the court could not resolve the key factual conflicts on summary judgment.

## Legal Principles

- Claims that officers used excessive force in making an arrest are evaluated under the Fourth Amendment’s objective-reasonableness standard, based on the totality of the circumstances.
- A police dog may be used to locate and help apprehend a fleeing suspect, but the reasonableness of the deployment depends on facts such as the threat posed, resistance, the availability of less forceful options, and whether warnings were given.
- Summary judgment is improper when material disputes exist about facts that determine objective reasonableness, including whether the suspect was trying to surrender and whether force continued after compliance was possible.
- Under Illinois law, officers have a privilege to use reasonable force to make an arrest; if the force is found unreasonable, it can support liability for assault and battery.

## Conclusion

McGovern v. Village of Oak Lawn denied summary judgment because competing accounts about K-9 warnings, McGovern’s attempted surrender, and the necessity and extent of Arno’s bites created triable questions on whether the officers used unreasonable force under the Fourth Amendment and, for the same reasons, whether Illinois assault and battery occurred.


McGovern v. Village of Oak Lawn, 2003 U.S. Dist. LEXIS 799 (2003)